Whitney v. Bartholomew

Church, Ch. J. The maxim, that every man must so use his own property as not to injure another, is known to every lawyer, and approved by every moralist. There is sometimes found a difficulty in its application. We do not understand, by this rule of law, that, if a man uses his own, without fault or negligence, he is responsible to others for the consequences. But many circumstances may conspire to determine what is a proper use of one’s own property. Some things are unlawful or nuisances per se; others become so, only in respect to the time, place or manner of their performance. The trade and occupation of carriage-making, or of a blacksmith, is a lawful and useful one; and a shop or building, erected for its exercise, is not a nuisance per se. Nor was there any complaint, in this case, that the defendant’s business was not conducted in the usual way; but it was, that the shop was erected and the business pursued, in an improper place. If this was so, that was a fault, or want of proper care in the defendant, which should subject him, if it [218] resulted in an essential injury to the plaintiff. The plaintiff in no fault; and the question submitted to the jury, was, whether the defendant was guilty of any. Blacksmith's shops or forges have been classed by courts, among those erections, which, by their position and use, may become nuisances. The defendant knew, when he erected his factory and shop, what effects the use of them would produce upon the near adjoining buildings and their inmates; and he must be presumed to have intended that which he might reasonably suppose would follow, and to have assumed the responsibility. The first object of society and of the laws, should be, to protect life, health and property, and the comfortable emjoyment of them; and whatever essentially, injuriously, and unnecessarily affects these, must be wrong. They are paramount to the mere convenience of pursuing a lawful calling, in a particular place; and so the common law has considered it from the earliest times; and so the judge, on the trial of this cause, treated it. He did not say to the jury, that the factory or shop of the defendant was a nuisance; but that the plaintiff could not recover, unless the injuries complained of by her, were occasioned by some wrongful act of the defendant, or some negligence or carelessness on his part. The defendant assumes, that, as he erected his shop and pursued his business on his own land, there could be no wrong on his part, if the business was conduced with due care and caution. Herein, we think, is his mistake; and he will find no authority to sustain that position. He had a right to erect his shop on his own land; but he must so use it, even there, as not to injure his neighbour. Indeed, as we have said, the erection of a building on one’s own land, with a purpose of its being so used that its use will probably result in an injury to others, is, of itself, a wrongful act. And whether such would be the effect, must depend much upon the nature of the business there done, and of its proximity to the residences and property of others. And therefore, it has been uniformly holden, that the placing of a swine-stye, slaughter-house, tannery, tallow-furnace, steam-engine, smith’s forge, or other erection, which, in its use, will infect the atmosphere, produce unhealthy [219] vapours, or offensive smells or noises, so near the dwellings of others as to materially affect them, and render them either unhealthy or uncomfortable, as residences, is unlawful and wrong, and constitutes such erections, nuisances, although upon the builder’s own land. And from this it results, that of trades which are lawful, some may be nuisances in cities, which are harmless in the country. Fowler v. Saunders, Cro. Jac. 446. Regina v. Wigg, 2 Salk. 460. Aldred’s case, 9 Co. 57. Jones v. Powell, Hutton 135. Morley v. Pragnell, Cro. Car. 410. Rex v. White, 1 Burr. 337. Fish v. Dodge, 4 Denio, 312. Meeker v. Van Renselaer, 15 Wend. 398. Baptist Society v. Rail-Road Co. 5 Barb. Sup. Ct. R. 79. 3 Stephen's N. P. 2362. 3 Bla. Com. 217. 1 Sw. Dig. 530. Hay v. The Cohoes Co. 2 Comstock, 159. In some books, it is said, that an action will not lie for consequences resulting from the reasonable prosecution of lawful business. Broom’s Maxims, 84 2 Sel. N. P. 1091. 1 M. & S. 95. But was it reasonable that this shop, which the defendant knew would produce serious injury to the plaintiff, in its use, should be placed so near to the plaintiff’s dwelling-house? And if it was not, how can it be said, that the business was either reasonably or lawfully conducted there? Blackstone says, that even lawful trades, producing such results as the plaintiff complains of, should be carried on, in remote places. 3 Bla. Com. 217. It does not appear from this record, explicitly, Whether the factory of the defendant was built before or after the erection of the plaintiff’s dwelling-house; but we infer from the course of argument and otherwise, that the plaintiff’s dwelling was first used and occupied; and we are not required to consider any questions which might be suggested, by a different state of facts than the record discloses. We think the charge of the judge was right; and that there should be no new trial. In this opinion the other judges concurred. New trial denied.